California’s COVID-19 Non-Emergency Prevention Standard Takes Effect

The standard, which the California Division of Occupational Safety and Health (Cal/OSHA) will enforce, will remain in place for two years until February 3, 2025. Its recordkeeping provisions will be effective for three years. This standard extends many of the requirements in the Board’s previous Emergency Temporary Standard (ETS), but with several notable changes. It comes as the state prepares to lift its COVID-19 state of emergency later this month.

The New Standard’s Requirements and Changes

According to Cal/OSHA’s updated fact sheet, the Non-Emergency Standard seeks to make it easier for employers to provide consistent protections to workers, while allowing for flexibility if the California Department of Public Health (CDPH) changes its guidance in the future. The standard applies to “all employees and places of employment” in California, with a few exceptions, which include work locations with one employee who does not have contact with other persons; employees working from home; and employees “teleworking from a location of the employee’s choice, which is not under the control of the employer.”

Injury and Illness Prevention Program

Among the changes, the standard lifts the requirement that employers maintain a standalone COVID-19 Prevention Plan. Instead, employers must now address COVID-19 as “a workplace hazard” in their Injury and Illness Prevention Program (IIPP) and include their COVID-19 procedures in their written IIPP or in a separate document. In determining measures to prevent COVID-19 transmission, employers must do the following:

• Provide effective COVID-19 hazard prevention training to employees. However, the Cal/OSHA fact sheet offers no guidance on what constitutes adequate training.
• Provide face coverings and respirators (such as N-95 masks) upon request. An employer must also ensure employees wear their items when CDPH requires them. Additionally, employers must allow employees to wear face coverings if they voluntarily choose to do so, unless it would create a safety hazard, such as interfering with the safe operation of equipment.
• Investigate and respond to COVID-19 cases, and notify certain employees, after close contact.
• Make testing available at no cost to employees during employees paid time, including to all employees in the exposed group during an outbreak or a major outbreak.
• Improve ventilation by maximizing the supply of outside air to the extent feasible or using the highest level of filtration efficiency system, such as filtering circulated air through filters at least as protective as Minimum Efficiency Reporting Value (MERV)-13 or HEPA filtration units.

Cal/OSHA Standard No Longer Requires Paid Time Off

In an important change, the Non-Emergency Standard no longer requires that employers pay employees when COVID-19 reasons exclude them from work. Instead, the standard requires employers to provide employees with information regarding COVID-19-related benefits such as paid leave for which they may be eligible under an employer’s leave policies, by contract, or the law.

California’s COVID-19 supplemental paid sick leave mandate expired on December 31, 2022. However, employees may be eligible to use paid sick leave required under state or local law for reasons related to COVID-19 if the reason otherwise qualifies under those laws. COVID-19 supplemental paid sick leave requirements remain in place for now in Oakland, Long Beach, and unincorporated Los Angeles County. The requirement in the City of Los Angeles expired on February 15, 2023. Further, employees who are ill from COVID-19 may qualify for State Disability Insurance (SDI) benefits.

Changes to Outbreak Protocols

In a significant change, the Non-Emergency Standard now requires employers to report major outbreaks to Cal/OSHA. The agency’s fact sheet clarifies that an outbreak means three or more COVID-19 cases among employees in an exposed group within a 14-day period. A “major outbreak” means 20 or more COVID-19 cases in an exposed group within a 30-day period. Employers must exclude COVID-19 cases from the workplace until they are no longer an infection risk and implement policies to prevent transmission after “close contact.”

Additionally, employers must still report information about any employee death, serious injuries, and serious occupational illnesses to Cal/OSHA, consistent with existing regulations. Separately, Assembly Bill 2693 eliminated the requirement in state law that employers notify the local health agency about employees’ COVID-19 exposure, effective January 1, 2023.

Notice Requirements

Employers shall provide written notification “as soon as possible” to employees (and union representatives, if applicable) and independent contractors who were at the worksite at the same time as the COVID-19 case during the infectious period of any potential exposures within one business day. Moreover, an employer must notify any other employer who potentially had its employees exposed at the workplace.

The Non-Emergency Standard requires employers to provide notice in accordance with Labor Code section 6409.6. As modified by AB 2693, and also effective on January 1, 2023, that provision now allows employers to post notice in the workplace for 15 days instead of providing individual notices. An employer must post such notice within one business day from when the employer receives a notice of potential exposure. The posted notice must include: (1) the dates the COVID-19 employee was on the premises; (2) the location of the exposure; (3) contact information for employees to receive information on COVID-19-related benefits (such as paid sick leave or SDI benefits); and (4) contact information regarding the employer’s cleaning and disinfection plan. AB 2693 will remain in effect until January 1, 2024.

Recordkeeping

The Non-Emergency Standard updated recordkeeping requirements for COVID-19 information and documentation. Employers must now keep a record of all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the last date at the workplace, and the date of the positive COVID-19 test and/or COVID-19 diagnosis. They must retain these records for two years. Additionally, employers will need to maintain COVID-19 notices (posted or individual written notices) for at least three years under AB 2693.

Updated Definitions

The new standard also revised several important definitions, which employer should note:

• “Close contact” is now defined by the size of the workplace in which the exposure takes place. For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is defined as sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period. For indoor airspaces of greater than 400,000 cubic feet, “close contact” means within six feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period. Cal/OSHA’s fact sheet provides no set period for “close contact” exclusion, merely providing that employees must test within three to five days after their last exposure, mask when around others for 10 days, and “test and stay home” if symptoms develop.
• “Exposed group” was clarified to include employer-provided transportation and employees residing within employer-provided housing that are covered by the COVID-19 prevention standards. An “exposed group” also means all employees at a work location, working area, or a common area at work, such as bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas, where an employee COVID-19 case was present at any time during the infectious period.
• “Returned case” means an employee who was excluded from work, returned, and did not show any COVID-19 symptoms after returning to work. A person shall only be considered a returned case for 30 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 30 days after the first positive test. If a period of other than 30 days is required by a CDPH regulation or order, that period shall apply.
• “Infectious period” is defined as the following time period, unless otherwise defined by CDPH regulation or order:
  •  For COVID-19 cases who develop COVID-19 symptoms, from two days before the date of symptom onset until: (1) 10 days have passed after symptoms first appeared, or through day five, if testing negative on day five or later; and (2) 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
  • For COVID-19 cases who never develop COVID-19 symptoms, from two days before the positive specimen collection date through 10 days (or through day five if testing negative on day five or later) after the date on which the specimen for their first positive test for COVID-19 was collected.

Employer Takeaways

The new Non-Emergency Standard is an important development, as circumstances shift from COVID-19 being treated as an emergency to something more of an endemic nature. Although perhaps not an emergency, COVID-19 remains a risk that employers still must face. Employers should take steps to update their IIPPs and other documents to comply with the new standard, as well as provide any necessary communication and training, among other required steps.